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A Louisiana appeals court recently upheld a $2,000 penalty against Interstate Brands Corp. for failing to authorize payment of Viagra prescribed to treat erectile dysfunction allegedly related to a work injury.
That case is available here and addresses a number of other issues tied to a 1996 back injury.
Comp Time would like to hear from readers how often erectile dysfunction arises from a comp claim.
A Google search of Viagra and workers compensation revealed an Alabama Department of Industrial Relations rule stating Viagra will be covered when “impotence is defined as that which may be reasonably expected to occur following certain traumatic injuries or surgical procedures.”
Psychological or psychiatric reasons may not trigger comp payments for Viagra in Alabama.
Surely other states have dealt with Viagra in the comp world.
On another topic, news reports say business groups in Maryland are concerned about a Gov. Martin O'Malley plan to help balance the state's budget by drawing $20 million from the Injured Workers Insurance Fund reserves.
It's another recent example of states wanting to take work comp funds to help fix their budget problems.
As I report today in a Business Insurance story available here, the recession is driving more states to try and offset their budget woes with comp fund end runs.
But insurers and self insured employers are fighting back with lawsuits.
The California Workers' Compensation Institute just issued a bulletin showing that comp claims generated by California durable goods manufacturing workers accounted for 1 in 14 job injuries in the state during 2008, down from 1 in 9 in 2001.
The bulletin contains demographic information on claimants in California's durable goods sector along with medical and indemnity loss information for the population. But what Comp Time found most interesting is what the research says about the steep decline in manufacturing in the state. That accounts for much of the fall in claims.
I asked Bob Young at CWCI about it and he referred me to a chart on the California Manufacturers & Technology Assn.'s website showing a steep (scary if you will) downward slope. The slope shows manufacturing jobs in the state decreased from 1.886 million during January 2001 to 1.286 million by November 2009.
The trend isn't limited to the current recession or just to the Golden State.
Bob also referred me to a Feb. 3, 2010, Wall Street Journal article “Radical Shifts Take Hold in U.S. Manufacturing.” The story essentially says the decline in manufacturing is occurring across the country, although some industries such as semiconductor production are growing.
The WSJ story also says these are not short-term changes, but part of a long-term structural shift. You have to ask what that means not just for comp claims, but for long-term changes in comp premium production and comp services.
To get the other side of the story Comp Time spoke with the attorney representing the illegal immigrant in the recent case in which Oregon's appeals court agreed that the claimant was not entitled to vocational benefits.
As mentioned in Comp Time's last posting, employers in several states have argued that they should not have to provide vocational rehabilitation benefits meant to help injured employees return to work when workers are not legally allowed to work in the United States.
That is a narrow view, said Adian Martin, an attorney at Ransom, Gilbertson, Martin & Ratliff LLP in Portland. He represented the Oregon claimant.
Claimants in these cases could eventually return to work if they obtain the proper documentation. The vocational skills the claimant could gain are not just instant benefits but could help them find work throughout their lives, Mr. Martin said.
There is also a question of fairness, he suggested. His claimant and many others come to the United States without documentation because of financial desperation. Some employers are happy to hire them only to use comp laws against them when it suits the employer's liking, Mr. Martin said.
Many Comp Time readers won't like Mr.'s Martin's argument. But there you have it. A copy of the Oregon opinion is available here.
On another subject, Comp Time recently posted on work comp benefits and medical marijuana. The bloggers at Workers' Comp Insider continued the discussion. It's available here.
A new Oregon Court of Appeals ruling that a person not legally authorized to work in the United States is not eligible for vocational assistance benefits tackles a nationwide issue.
As I wrote in a 2008 Business Insurance story available here, courts across the country have been weighing whether employers should have to provide illegal immigrants with vocational benefits.
The court battles have occurred in several states where claims payers have argued that they do not have to provide vocational rehabilitation benefits meant to help injured employees return to work when an employee is are not legally allowed to work in the United States.
In Carmen Carreon v. Commerce & Industry Ins. Co. the claimant appealed a ruling by Oregon’s Director of the Department of Consumer and Business Services denying her vocational assistance benefits for a 2005 injury because was not authorized to work in the United States.
The appeals court ruled the director has the authority to make such a determination.
A Business Insurance summary of the decision is available here.
OSHA just issued a press release saying it is proposing to revise its Occupational Injury and Illness Recording and Reporting regulation by restoring a column on its Form 300 to better identify work-related musculoskeletal disorders.
The proposed rule would not change existing requirements for reporting MSDs on OSHA injury and illness logs. But the proposed rule would require employers to place a check mark in a column for MSDs.
This is hardly news. OSHA under Barrack Obama’s administration leadership said last year it would do this and some employers fear it could eventually lead to workplace ergonomic standards.
A story I wrote in December on this issue is available here.
The proposed requirements are identical to those contained in the OSHA recordkeeping regulation that was issued in 2001 under President Clinton’s administration and later rescinded by a Republican-led Congress during President Bush’s administration.
You can view OSHA’s proposal here. It will be published in the January 29 edition of the Federal Register.
Meanwhile, The Pump Handle, a blog Comp Time regularly follows, recently posted on how OSHA might focus its resources now, given President Obama’s freeze on government spending.
The Pump Handle suggests that one could ask “whether an agency with a core mission of standard-setting, investigations and inspections should be directing $128 million to compliance assistance programs” provided for employers
Also, Julie Ferguson at Lynch Ryan’s Workers’ Comp Insider has posted a “Cavalcade of Risk and assortment of workers’ comp news briefs” for the week.
Julie’s work is always worth a read.
A judge hearing a California comp case let an independent medical evaluator decide whether a claimant should be supplied medical marijuana to treat his workplace injury or illness.
California’s State Compensation Insurance Fund declined to release details about the case it was involved in, but did confirm the court’s action and the final outcome.
The court’s consideration of whether marijuana should be provided as a work comp medical benefit supports a theory this blog posted on nearly three weeks ago when a Canadian work comp board denied payment of medical marijuana for a Saskatchewan man.
Comp Time suggested in that posting that as more states allow people to legally consume pot with a doctor’s prescription there is growing likelihood that medical marijuana use will become a comp issue
Work place safety, job accommodation, and benefits costs are but a few of the issues at stake.
In the California SCIF case, the work comp judge suggested leaving it to the independent medical evaluator to decide whether marijuana should be provided to the claimant and both sides agreed to abide by the IME’s ruling.
The IME ruled against the claimant and a SCIF spokeswoman said it was an unusual case although she couldn’t elaborate. She did say, however, that SCIF’s utilization review department had not encountered other medical marijuana cases.
But now that an IME has been allowed to decide in one case, what is to stop claimants or their attorneys from suggesting that other cases get similar treatment? Given the right circumstances in another case, could an IME’s decisions go the other way?
Since Comp Time’s earlier posting on the Saskatchewan man, New Jersey became the 14th U.S. state to allow medical marijuana use.
He could have come out looking like a victim, having endured an assault by his supervisor and the supervisor’s son who attacked the former hotel night clerk just for trying to collect wages his employer owed him.
The only thing that really took a beating, though, was Mr. Hossein Navaei’s story.
Instead of finding him to be a work-place crime victim, a California jury convicted Mr. Navaei of preparing a fraudulent document and attempted perjury in his attempt to collect comp benefits, court records show.
A security camera video tape played for the jury revealed a verbal altercation took place between Mr. Navaei and his supervisor, but not the physical attack he claimed caused injuries.
The court hearing his case in 2008 placed him on five years probation with certain conditions, including requiring him to serve 120 days in county jail.
But evidently he didn’t like some of the probation restrictions he agreed to at his sentencing hearing. So Mr. Navaei appealed, contending that the conditions prohibiting him from possessing weapons and drugs and associating with people he knows to be drug users and sellers are constitutionally vague and have no reasonable relationship to the offenses he was convicted of.
Earlier this month the appeals court adjusted the wording of Mr. Navaei’s probation conditions, but affirmed the trial court sentencing in a decision available here.
It takes a certain amount of creative story telling to stretch a verbal argument into an assault so severe that comp benefits are necessary.
But fortunately for the hotel owner who could have been straddled with a comp renewal increase to cover his losses, the camera didn’t lie.
Self insured groups, known as SIGs, could provide a model for a health care reform, says Joe Burgess, Senior Executive VP for CHSI, a company that manages SIGs in California and Nevada.
Mr. Burgess makes an interesting point that deserves discussion here in part because this blog and others have discussed the idea that state comp funds should serve as models for a public option in health care.
SIGs, however, may be at the opposite end of the operational spectrum from state funds.
SIGS typically insure smaller employers that ban together to address their risks. They are generally nimble entities run by entrepreneurs and they often require a degree of member participation to mitigate the risks.
Mr. Burgess' idea isn't uniquely his. But he sees it as one possible health reform option that could work in conjunction with other strategies. The idea is to create non-profit, self-insured co-ops that would compete against health insurers for the dollars employers spend to provide health coverage for their employees.
Granted, SIGs in some states have failed badly. But the failures are few compared to many others across the country operating successfully, Mr. Burgess says.
The people with the expertise to run self insured, SIG-type heath groups for smaller employers would probably come from the self-insurance world. It's a world populated by professionals with plenty of business creativity and ability to drive innovation.
Their creativity could help find cost reduction solutions for their group members, Mr. Burgess says. That could lead to creating programs for smaller companies, such as wellness programs that large corporation put in place.
Additionally, members sharing risks as part of a group typically get engaged. They learn more about their costs and participate in addressing them.
Part of this strategy's appeal could follow from the fact that these self-insured type plans would be driven by employers working cooperatively to find local solutions and apply local resources, Mr. Burgess says.
Launching this idea, however, would require federal legislation, something Congress could do as part of its reform efforts. But a commentary from The Washington Times pointed out in November, 2009, that the insurance lobby has worked against this idea. The commentary is available here and it's also posted on CHSI's website.
Long work hours and a lack of sleep can contribute to accidents while on the job and on the way home.
A Missouri woman, however, failed to convince a state appeals court that she should receive comp benefits after her car ran off the road during her 22-mile drive home following a 16-hour work shift.
The nurse had worked 8 hour shifts for 9 consecutive days before working the 16 hour shift on the 10th day. She was nodding off before her car left the road.
But the appeals court earlier this month ruled that the accident, which caused the nurse serious injuries, didn't arise in the course of her employment.
The nurse “chose” to go to sleep around 10:30 p.m. when she had to rise around 4:30 a.m. to start her shift at 5:45 a.m., the appeals court found.
You can view the court decision here.
Employers typically are not liable for accidents occurring on the way home. But Missouri courts have recognized a “special hazard” exception when employees are subject to “an abnormal exposure to an employment related peril.”
That occurred in a 1990 case where an electrical lineman worked 86 hours over four days just before crashing into an oncoming car while driving home. In that case, though, the lineman's work schedule denied him time to sleep. His work also involved extreme physical labor outside in the cold.
Even indoor jobs, however, contribute to safety problems when workers toil for long hours that don't allow for adequate sleep.
A 2005 study funded by NIOSH, for example, found that medical interns who worked shifts lasting more than 24 hours were more than twice as likely to have a car crash leaving the hospital and five times more likely to have a near miss as interns working shorter shifts.
Additional NIOSH information on reducing safety issues associated with shift work is available here.
A new John Hopkins study confirms what comp professionals have long understood, doctors can make a huge difference in claims costs.
The study, published in the January edition of the Journal of Occupational and Environmental Medicine found that 3.7% of doctors accounted for more than 72% of comp costs.
Those findings were based on Louisiana Workers’ Comp Corp. claims data from 1998 to 2002. The study concluded that cost intensive docs substantially impact claims expense independent of injury severity.
The new research backs a 2005 John Hopkins study that found a network of select physicians can substantially impact treatment costs and help close claims quickly.
These findings are nothing new to the comp world. Claims managers have known for a long time that getting injured employees to the right doctor is essential for returning them to work quickly.
But it’s nice when science is on your side.
In this case, the researchers say their work could also help shape overall healthcare reform.
“As we continue to debate the nation’s health care system, it makes sense to analyze how practice patterns drive costs before instituting sweeping reform,” one of the researchers said.
But how many in Congress will actually take time to look at such studies before casting a vote?
